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New legislation on illicit mining targets zama zamas and the networks that finance, facilitate, and profit from the trade. But the legislation fails to even begin to grasp or address why the zama zama problem arose in the first place.

The General Mining Laws Amendment Bill, approved by the Cabinet, is the latest purported attempt to deal with a phenomenon that is causing increasing concern to the mining industry, and to communities living around mines. The Bill introduces changes to a number of laws, including the Criminal Procedure Act, the Diamonds Act, the Minerals and Petroleum Resources Development Act (MPRDA), and the Precious Metals Act. The MPRDA has a particularly prominent role here as it regulates the mining economy as a whole, and effectively nationalised South Africa’s mineral resources. No mining may be undertaken without a permit issued by the state, invariably with onerous conditions attached.

Justice and Constitutional Development Minister Mmamoloko Kubayi said the proposed amendments were intended to close a gap in the existing legal framework. Illicit mining is prohibited, but she said, “illicit mining and the activities related to illicit mining are not criminal offences”. This is wrong, of course, and that the trespassing, smuggling of explosives, trafficking in people and trading in illicit precious metals and diamonds are all criminal offenses. The Bill seeks to impose additional penalties for offences linked to illicit mining, including the possibility of fines of up to R100 million and prison sentences of as long as 30 years.

The minister said: “Illicit mining has negative effects on communities in and around mining towns, damages the infrastructure of affected areas such as underground water pipes, which then affects water security and poses a serious threat to the safety and security of the affected communities.”

It was also linked to “kidnapping, human trafficking, child labour and forced labour”. Armed syndicates were unafraid to use violence in pursuit of their activities, and illicit mining produced an ecosystem of criminality, including extortion, corruption, and various forms of personal and property crime.

In practice, this is all political grandstanding and an attempt to demonstrate that something is being done even as the root causes of the problem are being left unaddressed.

Efforts to combat illicit mining have thus far focused on rooting out the underground workers – including establishing a new military unit for underground operations and prosecuting the syndicate bosses, those supporting it logistically, and those profiting off it.

The problem is that all these efforts fail the address the fact that the origins of the zama zama problem rests in the hearts of the government’s MPRDA policy itself. The Act expropriated South Africa’s mineral resources from the private owners that privately held these and vested them in the state. Any private interest in protecting those resources was therefore done away with. At the same time, the Act set such onerous black economic empowerment criteria to win a licence or a permit to develop or mine a resource that many mining investors simply walked away from South Africa. The consequence was that mineral resources were left unguarded and unexploited, just waiting for an illicit or criminal actor to seize. Given the corruption within the state and within its security forces this was easy, and was done in collusion with corrupt politicians and police officers.

The extent to which private investors walked away from South Africa’s mineral resources is shown on the chart below. We had previously published it in an analysis of South Africa’s mining industry.

Our original analysis of the mining industry can be read here and contains much additional data on how lawful investment, employment, and production in the mining industry has slumped.

The way to deal with the zama zama problem is therefore to amend significant portions of the MPRDA. Private actors need to have their expropriated mineral resources restored to them and licensing and permit systems need to be amended to exclude social engineering criteria and focus exclusively on whether the mining company in question has the professional ability to exploit a mineral resource.

But there's a reluctance in the state to do this, for the reason that the zama zama kingpins are closely associated with broader illicit economic sectors in the country and the politicians that protect those industries. It is for this reason that the government is grandstanding on its proposed solution to the zama zama problem instead of addressing the reason the problem arose in the first place.